Former Irish Nationwide Building Society chief executive Michael Fingleton has lost a High Court bid to stop a case against him for alleged negligent mismanagement of the society's affairs.
The now 83-year-old, who suffered a severe stroke in 2018, had asked the court to stop the case by Irish Bank Resolution Corporation (IBRC) on grounds of ill health.
At a hearing in February his lawyers said he was mentally and physically incapacitated and would not be able to critically assess evidence or engage in his defence in a meaningful way.
IBRC claims Mr Fingleton enjoyed "excessive" control over Irish Nationwide's business and made several loans of more than €1m without consulting the board.
These claims are "hotly contested" by Mr Fingleton, the court heard.
IBRC had argued that Mr Fingleton's ill health was not a basis to stop the case. In proceedings initiated in 2012, it claims Irish Nationwide's €6bn in losses between 2008 and 2010 arose from development loans made when Mr Fingleton was CEO.
It claims if the true picture had been disclosed, Mr Fingleton would have been dismissed for breach of duty by 2007 and would not have been paid expenses and performance bonuses for 2008 and 2009.
In a judgment issued this morning, Mr Justice Tony Hunt said while he accepted the absence of testimony from Mr Fingleton was a significant disadvantage to his defence, it was not enough to stop the case.
The judge said the law provided that even death did not automatically terminate civil proceedings.
He also said the balancing process must take account of the fact that stopping the case to vindicate the rights of one party affected the right of the other party.
This was especially the case where there was no issue of delay or any other culpable behaviour on the part of IBRC.
The judge said much was made of the complexity but this only served to underline the fact that Mr Fingleton would not be the only witness and the resolution of the case depended heavily on an assessment of objective factors and standards.
He said "the actions of a properly run financial institution of this size should not require extensive explanations derived from the memory of one individual" no matter how prominent a position they occupied.
Judge Hunt did not accept that the case against Mr Fingleton was punitive in nature. He noted that Mr Fingleton had received considerable financial compensation for his services to INBS and must accept the burden of litigation arising from those services.
He did not regard the decision of the Central Bank not to proceed with its inquiry into Mr Fingleton's management of INBS to be a guide as to whether civil proceedings should be stayed or dismissed. The judge said he did not believe that the public interest was a significant factor.
He said the nature and extent of the case against him had been known to Mr Fingleton since 2014 and there had been no change in substance since that date.
There was a period of several years before he became ill over which he had time to consider and react to the allegations and to instruct his legal team who should be able to challenge the plaintiff's evidence in cross examination, the judge said.
He said the defence had access to a vast quantity of relevant documents and to a range of witnesses. In assessing the balance of justice and the fairness to both parties the judge said he was satisfied the balance of justice lies firmly on the side of permitting the proceedings to continue.
In reaching his conclusion the judge said he attached importance to the consideration that the balance of justice and fairness would remain a live issue in the case and that Mr Fingleton would have a continuing ability to raise issues of concern.